Don't Be A Doobie! Copyright Is A Federal Crime!

Law, WTF?

Earlier this month I wrote about a dispute between forum goons from Something Awful and cartoonist Donna Barstow. Something Awful's forum goons felt that posting her comics for the purpose of criticizing them amounted to fair use; she disagreed and felt that some of their criticisms were defamatory. The post resulted in Ms. Barstow calling me at the office, suggesting that I had no business writing about the subject because I don't list copyright law as an area of specialty, and later accusing me of having a shaky voice. Life's like that some days.

Ms. Barstow apparently took her sites down for a while, but now at least one, opedcartoons.com, is up again. I was not previously aware of this; as far as I can tell Ms. Barstow has blocked my IP address from reading it. Or perhaps I'm not good at the internet. Either is possible.

Anyway, Ms. Barstow has a new post up stating her views on fair use. It opens:

Copyright is a federal crime!

I'm almost certain Ms. Barstow has not gone all Abbie-Hoffman-via-Pirate-Bay on us and means to say that copyright violation is a federal crime. She's correct, to an extent — willful copyright infringement is a federal crime under certain circumstances, though practically speaking the wilfulness requirement would make it extremely difficult to prosecute a case involving a good faith dispute over the scope of fair use, and no U.S. Attorney's Office would bring charges in such a circumstance.

Ms. Barstow continues with comments about Something Awful:

I recently had a problem with an unenlightened, uneducated and low-class site who stole (and are stealing) a lot of my cartoons.

They are a “humor” site, and they stole many dozens of my cartoons (which explains why this site was down for the last 10 days). I will deal with them separately, when my invesigation [sic] is done, but because they were so very stupid, I wanted to try to explain Fair Use to my smart readers here!

I don't really follow the logic of the last sentence, but perhaps I belong in the stupid category.

Most people don’t understand political cartoons, as shown by the fact that over 50% of my visitors are from schools & universities.

I really don't get that either. Clearly, I'm stupid.

If you lift cartoons for any other reason than Fair Use – because you feel stupid that day, you’re lazy, you don’t have a subject to write about, you’re jealous of cartoonists, you have a big hole in your post to fill, or you have a liberal hate site – you are breaking copyright law and can be prosecuted. And you will be. Not to mention how embarrassing it is when your host tells you they are removing the copyrighted material you took!

Well, I'm not a professional cartoonist. I'm just a former federal prosecutor and 12-year federal defense attorney. But I feel pretty confident in saying that nobody is getting prosecuted over this particular fair use dispute. MegaUpload is the type of case that gets prosecuted. Also, I am quite confident that being a "liberal hate site" is not an element of criminal or civil copyright infringement.

Of course, Ms. Barstow may be using the word "prosecuted" to include "sued civilly." I suppose we'll see.

Ms. Barstow discusses her view of the law of fair use. Review it and evaluate her position. Personally I would probably rely on a resource like the Citizen Media Law Project instead, but tastes will differ.

Don’t be a doobie.

Indeed, do not be a marijuana cigarette.

Last 5 posts by Ken White

69 Comments

68 Comments

  1. TJIC  •  Jul 17, 2012 @10:53 am

    > Copyright is a federal crime!

    I've also learned on the Internet that invoking the First Sale Doctrine is un-Christian.

    God created legal discussion on the Internet so that physicists don't have all the fun of dealing with disheveled ranting people with Important New Theories.

  2. mmrtnt  •  Jul 17, 2012 @10:53 am

    From what I've heard about YouTube, it sounds as though Ms. Barstow spends a lot of time commenting on the videos there.

  3. Adam Steinbaugh  •  Jul 17, 2012 @11:03 am

    I believe the "[m]ost people don’t understand political cartoons, as shown by the fact that over 50% of my visitors are from schools & universities" point is an attempt to justify as fair use her reviews of other cartoonists' work because it shows that it's "educational" — in the next line she says, "This blog is educational, which is a huge part of Fair Use."

    It's a nice try, but she wasn't using her blog to 'educate' people about political cartoons in the traditional sense. She was using it to criticize others' work (which can be educational, too).

    But that would mean that SomethingAwful's use to criticize and impugn would be fair use, too, and we can't have that, can we?

  4. Mike K  •  Jul 17, 2012 @11:04 am

    How does a statistic like "50% of my visitors are from schools & universities" equate to most people not understanding political cartoons?

    That comment throws me no matter which almost rational approach I try to use.

  5. Chris Rhodes  •  Jul 17, 2012 @11:06 am

    With reasoning like that, if Charles Carreon wasn't already married to someone a few (at least) tacos short of a combination plate, I'd suggest he look into Barstow as a possibility.

  6. Wren  •  Jul 17, 2012 @11:07 am

    I have to assume that what she's saying is logical and coherent to her. I just….can't wrap my head around it. Apparently I am also one of the dumb ones.

  7. Miranda  •  Jul 17, 2012 @11:07 am

    Why do you run such a liberal hate site? Or is it a left-leaning hate site? Or a right-leaning one? I forget.

  8. Jay Lee  •  Jul 17, 2012 @11:08 am

    Thanks for directing me to that article. I needed a nice after work headache.

  9. M.  •  Jul 17, 2012 @11:09 am

    @mmrtnt: Well, that explains everything.

    So this one time I accidentally mixed ketamine and Vicodin, and I was still more coherent than she is.

  10. TheOtherMatt  •  Jul 17, 2012 @11:15 am

    What she doesn't dig the fact that you sound like Kermit the Frog… No offence intended of course, but i understand that some people don't like being compared to a Muppet. Somehow i don't think you'd be one of those people.

  11. Darryl S  •  Jul 17, 2012 @11:16 am

    I believe the comment about "schools and universities" is intended to suggest something like "My audience is largely academics, because they're the ones who are smart enough to understand my comics. Less-educated people don't read my comics because they can't appreciate them."

  12. Ben  •  Jul 17, 2012 @11:25 am

    Hm. So, for (a)(3)(B)(i) … If the 'motion picture' is not being shown in a theater, it is not considered a 'motion picture'?

    Or is it an "or" statement, not an "and" statement with (a)(3)(B)(ii)?

    Not a fan of copyright… but that does not seem reasonable.

  13. Mike K  •  Jul 17, 2012 @11:27 am

    So you guys are saying that her statements make sense if you assume that only people that understand her comics read them, people in schools understand them, and that anyone that doesn't read her comics doesn't understand them? If that's the case, at least the statements make some sense, even if all the assumptions are wrong.

  14. W. Ian Blanton  •  Jul 17, 2012 @11:30 am

    "but because they were so very stupid, I wanted to try to explain Fair Use to my smart readers here!"

    Wouldn't the SMART users already know, and you'd need to explain it to the STUPID ones?

    Maybe I'm just not as SMRT as Donna Barstow.

  15. Phe0n1x  •  Jul 17, 2012 @11:33 am

    Aaaaaaaaaaaaaand critiquing a piece of work is also covered under DCMA Fair Use. Can I get a dumb "C-word"? Someone needs to learn how to quote the actual law. OH LOOK! Google result #5 from "fair use clause"
    http://www.law.cornell.edu/uscode/text/17/107

  16. Robert White  •  Jul 17, 2012 @11:38 am

    Pointing this out again:

    http://any.site.dot.com/some/path

    Can be re-written as

    http://any.site.dot.com.nyud.net/some/path

    This will take you through the Coral Cache system to the original site. This in turn will reduce your "hits" on their site, and will (this part's for you ken) make you an anonymous visitor.

    So if you want to link to some site without raising its google relevance or if someone has blocked your IP address so they can snark, just use the cache.

    (I am in no way related to the Coral Cache project, its just super useful and deserves the press.)

  17. mmrtnt  •  Jul 17, 2012 @11:39 am

    M

    De lime in de coconut – I like it!

  18. Jay Lee  •  Jul 17, 2012 @11:40 am

    Comment in the SA forum from RealLiveDinosaur "As a longtime Romper Room fan I can tell you that the advice should be "DO Be a Do Bee". Because Do Bee does good things and is a cool guy and everyone likes him. He gets laid a lot, I bet."

    That was totally worth it. Although it did cause me to relive some of the trauma caused when the lady would get out her magic magnifying glass and scan the television audience for names and faces. I always wore pants when that show came on…just in case.

  19. Rliyen  •  Jul 17, 2012 @11:41 am

    Thanks, TOM… Now I have the following stuck in my head (in Kermit's voice):

    HI HO! Ken the Lawyer here…

  20. Laura K  •  Jul 17, 2012 @11:42 am

    Holy. Sweet. Molten. Lava. Pom-Pom. Studed. Stupidity. Should I just be grateful this woman isn't in public office? (Oh dear Goddess, she isn't, right?)

  21. mmrtnt  •  Jul 17, 2012 @11:47 am

    Before the internet, you could only observe someone with functional stupidity in person, like at the DMV or a family get-together.

  22. Connie  •  Jul 17, 2012 @11:48 am

    This and the thread prior make me want to go back to hanging out as a Forum Goon. SA has some great creative folk, and I will always remember our Let's Play Oregon Trail adventures.

  23. Elliot  •  Jul 17, 2012 @11:57 am

    Ken,
    You left out the best part of her post, which is the title: "Watch Out for Men in Black."

  24. John Ammon  •  Jul 17, 2012 @11:59 am

    Indeed, do not be a marijuana cigarette.

    Ken, you slay me, I am slain.

    I kinda figured she wasn't done, apparently she thought that removing her sites would remove all the links to "stolen" content? Foolish, also ignorant. There's no excuse for that, if you're going to internet, learn how to internet.

  25. sean  •  Jul 17, 2012 @12:08 pm

    Two obervations… am I right?

    1) The vast majority of laypersons who attempt to explain copyright law online don't understand it *at all*.

    2) Folks who exercise their first amendment rights to say the kookiest

  26. Wilhelm Arcturus  •  Jul 17, 2012 @12:13 pm

    I'm still giggling at "liberal hate site." Is that a site that is liberal and hates, hates liberals, or just spreads hate around liberally?

    If ambiguity is an essential element of humor, she has clearly missed her true calling in life.

  27. SPQR  •  Jul 17, 2012 @12:21 pm

    Coherence is evidently not fair use.

  28. Allen  •  Jul 17, 2012 @12:51 pm

    I think she meant "don't be adobe."

    I also don't want to be stucco.

  29. CTrees  •  Jul 17, 2012 @12:56 pm

    Maybe she just really hates the Doobie Brothers?

  30. Leon  •  Jul 17, 2012 @1:08 pm

    Coherence is evidently not fair use.

    Duh, it's hate speech ;)

  31. wgering  •  Jul 17, 2012 @1:15 pm

    Maybe she should get Charlie the Censor to protect her from Internet Rapeutation(TM).

  32. Gavin  •  Jul 17, 2012 @1:35 pm

    Haha, a shaky voice and I bet she thinks you're a big meanie head.

  33. CCChicago  •  Jul 17, 2012 @1:36 pm

    Maybe she should Take It To The Streets. Or, take a vacation somewhere exotic, like China Grove. In any case, it's pretty clear she believes What A Fool Believes and that we're living in a World Gone Crazy.

  34. Susan  •  Jul 17, 2012 @1:56 pm

    I just want to send a big THANK YOU to Ms Barstow. I was short on entertainment today.

  35. Kelly  •  Jul 17, 2012 @1:56 pm

    Oh boy… good thing CC isn't into having sister wives or he'd be at her door right now. *shudder*

  36. Chris R.  •  Jul 17, 2012 @2:21 pm

    Copyright is a federal crime

    Syntax error? Wouldn't copyright violation be the crime. Her statement makes it sound like copyright violation is the remedy…

  37. John Ammon  •  Jul 17, 2012 @2:34 pm

    Kelly, maybe he is, but can you imagine anyone who'd willing be a "sister wife" to Tara? o_O

  38. M.  •  Jul 17, 2012 @2:41 pm

    The more times I read "Copyright is a federal crime!", the funnier it gets. Please to not be copyrighting, comrade! In Soviet Russia, copyright violates YOU! VE HAF VAYS OF MAKINK YOU TALK!

  39. S. Weasel  •  Jul 17, 2012 @2:48 pm

    @Jay Lee our local Romper Room lady was Miss Nancy, and she never saw me in that goddamned mirror, even though my name is perfectly common. Day after lonely day.

    It was the Do Bee versus the Don't Bee. You wanted to be the Do Bee. Perhaps Miz Barstow is a bit of an outlaw, after all.

  40. AlphaCentauri  •  Jul 17, 2012 @2:58 pm

    I remember "Do Be a Do Bee," too. Apparently, her mind is focused on sins of commission, so she remembers Do Bees as doing things that are wrong. For those too young to remember Romper Room:
    http://www.wonderfulway.net/Do%20Bee%20B.gif

  41. mmrtnt  •  Jul 17, 2012 @3:12 pm

    Don't be a Dobie (Gillis)

  42. Bearman Cartoons  •  Jul 17, 2012 @3:29 pm

    hmmm…I am not getting the school and university traffic to my cartoons. Maybe all my readers are smart or 100% of them are dumb. I probably fit in both categories depending on the day.

  43. ouzelum bird  •  Jul 17, 2012 @3:57 pm

    "'Don’t be a doobie.'

    Indeed, do not be a marijuana cigarette."

    Came here for this; was not disappointed. A+++ would cackle again

  44. leo marvin  •  Jul 17, 2012 @5:34 pm

    Don't be a luddy duddy. Don't be a moon calf. Don't be a jabbernowl.

    You're not those, are you?

  45. KronWeld  •  Jul 17, 2012 @6:11 pm

    Well, she did fix the lead in, calling it a typo. Wow, she doesn't think Ken should be commenting on copyright law, since he doesn't list it as a speciallty – he's only a lawyer after all, but she can because she doesn't have a back ground in law? Just, wow. Next she can start correcting doctors on medical issues, priests on their religion and swimmers on swimming technique!

  46. John Ammon  •  Jul 17, 2012 @6:13 pm

    By the same logic KronWeld, Ms. Barstow shouldn't be allowed to pretty much talk about anything eh? :P

  47. Kelly  •  Jul 17, 2012 @7:12 pm

    @ John Ammon: I am trying NOT to think about it… the stuff of nightmares that is.

  48. W Ross  •  Jul 17, 2012 @7:23 pm

    Make sure you don't go full doobie,' guys. Try to avoid being anything above 'small metal pipe that looks like a cigarette.' We're not barbarians.

  49. Adam Raymer  •  Jul 17, 2012 @8:49 pm

    Surprised no one has mentioned it yet…

    It's possible the reason you can't access the site is your DNS cache hasn't updated yet. She had parked her domain previously, so depending on how long it's been since last you checked, your browser may be attempting to view the last nameserver entries (The parked site), instead of the newer ones (the real site).

  50. apauld  •  Jul 17, 2012 @8:50 pm

    Did anyone else notice, most of her posts either have no comments, or comments deriding her?

  51. Chris R.  •  Jul 17, 2012 @8:56 pm

    Donna Barstow stalks me. Seriously. Ever since I talked to her when this first blew up, I've had a follower on twitter named anonymouse and now I see her website name… Interesting.

  52. KronWeld  •  Jul 17, 2012 @9:37 pm

    John, well, she is a "comic artist" so maybe she can talk about that with some "authority"; she's published even. I wonder if she makes a living off of it, like the Oatmeal does. Hmmmmmmmmmmmm?

  53. John Ammon  •  Jul 17, 2012 @9:42 pm

    @KronWeld: Touche!

  54. Sunny  •  Jul 18, 2012 @4:33 am

    Doobie, Is it short for Donna Barstow?

  55. Gal  •  Jul 18, 2012 @4:57 am

    Oh god, she's taken to editing the comments. Apparently the Streisand Effect is an effect a scurvy liberal hate blogger made up (Presumably you, Ken, you need more fresh fruit & veg in your diet.) Boy, is she in for an education.

  56. Gal  •  Jul 18, 2012 @5:01 am

    @Chris R: Just seed the stuff you downloaded, that's one way to give it back. And it'll make Ben happy, too, especially if it involves set theory.

  57. V  •  Jul 18, 2012 @6:32 am

    @Chris R.
    the 'anonymouse' part in the website title is a side effect of the anonymizer that Ken used for the link and not part of the original website.

  58. Josh D  •  Jul 18, 2012 @8:07 am

    The edits she made on the comments are priceless. For example

    I hope I didn't copyright by doing that!

  59. Josh D  •  Jul 18, 2012 @8:07 am

    Oops, got that wrong, first time using the tags. Here's the comment

    As you are more educated, enlightened and are a beacon of class, I will trust that you take the correct legal action and measures to ensure the copyright enforcement and integrity of your original work, instead of making uninformed blog entries that serve as a classic example of the Streisand Effect [an effect a scurvy liberal hate blogger made up].

  60. Ken  •  Jul 18, 2012 @8:27 am

    Actually, Mike Masnick of Techdirt is credited with coining the term "Streisand Effect." (I learned that through the arcane and obscure method called "Googling it.") Other than Tara Carreon, I'm not aware of anyone who views him as a hate blogger. Also, I saw him eat a lime just the other day.

  61. Matthew Cline  •  Jul 18, 2012 @9:18 am

    Most people don’t understand political cartoons, as shown by the fact that over 50% of my visitors are from schools & universities.

    Here's my guess as to what she means:

    1) Most people from schools and universities are liberal.
    2) Her political cartoons criticize liberals.
    3) If the readers from universities and schools realized they were being criticized, they wouldn't read her cartoons.
    4) Therefore, they must not understand political cartoons.

  62. apauld  •  Jul 18, 2012 @9:36 am

    Ken, I am sure Barstow would consider Mike a hate blogger, specifically because he can prove her views are wrong. And that would also make him a liberal, at least in her mind. This is not to diminish Tara's lack of reasoning, she once posted on techdirt "They're working for the Publishing Industry here at Techdirt." And that is one of the craziest things I have ever read on Mike's site.

  63. Aaron Weiss  •  Jul 18, 2012 @10:33 am

    I'm still waiting for Ms. Barstow to apologize for being really creepy and bringing my baby daughter into the discussion when I asked her about this very topic: https://docs.google.com/document/pub?id=1gwA7lXSoyRBo037V19fHD-UFwcdpC9FR-fc2iGKETu8

    Somehow I think that's not going to happen.

  64. Chris R.  •  Jul 18, 2012 @10:50 am

    V, stop your hate speech directed at me. By questioning what I wrote you are infringing my rights to be oblivious. I'm telling Donna.

  65. Gal  •  Jul 18, 2012 @10:56 am

    @Ken: Granted, but I'm still willing to bet you an internet that she's attributing the coining of the term to you.

  66. Chris R.  •  Jul 18, 2012 @11:14 am

    Aaron, it takes someone special to talk about your family. I find only the truly depraved bring children into the discussion.

  67. angstela  •  Jul 18, 2012 @12:18 pm

    Really, this seems to be the usual form of reality-denial those with no sense of humor fall into — and any of her cartoons is substantial proof that she has no sense of humor.

  68. Hughhh  •  Jul 19, 2012 @5:41 am

    Comment in the SA forum from RealLiveDinosaur "As a longtime Romper Room fan I can tell you that the advice should be "DO Be a Do Bee". Because Do Bee does good things and is a cool guy and everyone likes him. He gets laid a lot, I bet."

    That was totally worth it. Although it did cause me to relive some of the trauma caused when the lady would get out her magic magnifying glass and scan the television audience for names and faces. I always wore pants when that show came on…just in case.

    Jay Lee, the last line in your comment had me crying with laughter. :D

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